Bosanatz v. Ostronich

MR. JUSTICE MATTHEWS delivered the opinion of the court. The appellant alleged that prior to March 8, 1914, he had become familiar with the value and quantity of ore disclosed in the Elenora lode claim, containing ore of a value in excess of $35,000, of which there was partly blocked out and exposed ore of the value of more than $10,000; that on said date he disclosed his knowledge to respondent, and that they then entered into an oral agreement to go to the claim, make an examination, and, if desirable, make an effort to purchase the claim, the respondent to advance $1,000 or so much thereof as should be necessary to make the first payment; that they would then operate the property, repay respondent, and complete the payments on the mine out of the proceeds from ore shipped; that on April 27, 1914, they did visit and examine the mine, under their agreement, and thereafter purchased the same, with the Blondie Britannica and Minnie Montreal claims, for the sum of $4,500; that under the agreement appellant was to have charge of the mining operations, while respondent was to look after the outside affairs; that — 202 — appellant performed his part of the agreement until October, 1914, when he became sick; that ore of the value of more than $35,000 was extracted and shipped, and the purchase price fully paid from the proceeds, but that the deed was taken in the name of Joseph Ostronich, a brother of the respondent, secretly, with the intent to cheat and defraud appellant; and that Ostronich has since transferred the property to respondent. The prayer for relief is that respondent be adjudged to hold the one-half interest therein in trust for appellant, an accounting required, and the respondent directed to convey the one-half interest to appellant. The allegations being denied, the cause was tried to the court sitting with a jury. The jury found in favor of appellant, but the judge rejected the findings of the jury, and made general and special findings in favor of respondent, and entered judgment thereon. This appeal is from the judgment. 1. The first contention of appellant is that the findings of the [1] court are not supported by the evidence, and are contrary to the decided weight and preponderance thereof. The testimony of appellant in his own behalf is ample, if uncontradicted, to prove all the allegations of his complaint; he was substantially corroborated by his brother, Mike Bosanatz, and, in some particulars, by two or three other witnesses. There are, however, a number of contradictory statements in his testimony. Two witnesses offered for the purpose of impeachment testified to statements made at other times contradictory of his testimony on the stand. In addition, Andrew Anderson, the grantor of the Elenora and joint grantor of the other claims mentioned, testified that at the time appellant claimed to have been familiar with the property the claim had not been discovered, no vein disclosed, and, at best, there was known to be upon it float and small holes and cuts, made by him in an effort to locate the vein from which the float came. Anderson further testified that the conversation related by appellant was held in the summer-time, before he discovered the Elenora, and referred only to the two other claims. — 203 — Bosanatz, having testified that he and Ostx’onieh went to Goodrich gulch for the purpose of examining the Elenora or the Anderson property; that when they arrived, they went directly to the Elenora, examined it, took samples, and attempted to buy the property. Anderson testified that when the two men came to his place they had dinner’, and proceeded to the Carolina, a claim owned by Senator Hoffman, of Bozeman, and did not go to the Elenora until the next day, and then only when he invited them, they being about to depart, to take a look at his property; that Osti’onich asked if he could take samples, and was given permission, and, on being told that he (Anderson) could not do anything with the property at present on account of an attempt to jump the claim, said that he would return later; and that Ostronich did return on two subsequent occasions, finally purchasing the px’opex’ty. Ostronich flatly contradicts all of the testimony of appellant concerning any agreement as to the Elenora, or any conversation on the subject, but states that, having on several occasions told appellant that if appellant could secure a lease where he could make anything, he (Ostronich) would help him financially, at least to the extent of $1,000. Respondent further testified that appellant told him of the Carolina and of the Argenta claims, in the vicinity of the Elenox’a; that he wrote, in appellant’s name, to Sexxator Hoffman concerning a lease and, being informed that the ownei’s might operate the claim, but, if they did not, they would advise him furthex’, appellant and respondent went to inspect the two claims, lying about twenty miles from where they were working. On reaching the Argenta they found men working on it, and appellant said that, as the claim was being operated, it would be useless to try for a lease on it; that they examined the Cax*olina, and he advised appellant that it was pretty well wox’ked out, but that there was one showing whex’e a man might, by hard work, make wages. Returning to Anderson’s cabin they spent the night, and the occurrences of the next day were as Anderson had stated them. — 204 — The testimony as to appellant’s management of the mine was conflicting and unsatisfactory. The evidence disclosed the fact that appellant was singularly uninterested and did not seek information as to the terms of the lease and bond, the expenses of operation, the returns from the shipment of ore or the reason why the title was taken in the name of Joseph Ostronich, when he discovered the fact. He accepted small payments, approximately amounting to the wages he earned, and which respondent testified were in payment of his wages, but which appellant contends were his portion of net proceeds, without inquiry as to ■what the proceeds of the mine were. There is a sharp conflict in the testimony. The evidence would seem to be sufficient to support either party’s contention, considering merely the cold record; but the trial judge had the advantage of seeing the witnesses on the stand and noting their demeanor while testifying, and their appearance on the stand. Where the evidence is conflicting in an equity case, the findings [2] of fact by the trial judge rest upon the same principle as the verdict of a jury. (Ingalls v. Austin, 8 Mont. 333, 20 Pac. 637.) This court has held repeatedly that, where there is a substantial conflict in the evidence, the supreme court on appeal will not disturb the verdict of the jury on the ground of alleged insufficiency of the evidence. (Murphy v. Cooper, 41 Mont. 72, 108 Pac. 576; Previsich v. Butte Electric Ry. Co., 47 Mont. 170, 131 Pac. 25.) Indeed, we may go much further than this, and declare that the findings of the district court in equity eases will never be reversed except where the evidence clearly preponderates against them. This doctrine has been declared by this court in a long line of decisions, from Story v. Black, 5 Mont. 26, 51 Am. Rep. 37, 1 Pac. 1, the first ease reported in the Pacific Reporter system, down to Boyd v. Huffine, 44 Mont. 306, 120 Pac. 228, and Winslow v. Dundom, 46 Mont. 71, 125 Pac. 136. 2. Appellant contends that the rejection of the jury’s findings [3] constitutes error, for the reason that appellant was entitled to a jury trial, and therefore its findings could only be set aside — 205 — for such cause as would warrant like action on a verdict, or if this position be not tenable, then, under the circumstances, the findings were entitled to great weight, and were not to be lightly disregarded. This contention is without merit, and has long since been foreclosed by this court. In the case of Short v. Estey, 33 Mont. 261, 83 Pac. 479, in which the facts were similar and the relief prayed for the same as here, this court said: “The cause of action stated in the complaint is one of purely equitable cognizance. There is no issue presented of such a character as would entitle any of the parties to a trial by jury, according to the usual course of law. The court, then, was not bound to call a jury; and, if it had submitted the case for findings, it would not have been bound by them. In such cases the findings may aid the conscience of the judge, but may not control his judgment. The findings and judgment are his. If, when the jury has made findings, the judge is not satisfied with them, he may disregard them, and so find as to satisfy his own conscience.” In Wetzstein v. Largey, 27 Mont. 212, 70 Pac. 717, the court held that “Ultimately the findings and decree based thereon must be regarded as emanating from the judge, and the correctness of the result must be determined by a review of the action of the judge, without regard to the findings of the jury. This court has so held in many cases.” 3. We find no error in the ruling of the court on the questions set out in specifications Nos. 17 and 18. 4. Appellant propounds the question, “What are the rights of [4] the plaintiff under the defense of the defendant?” to which the answer is: The only property alleged by appellant to have the subject matter of the trip to Goodrich gulch is the Anderson property, the Elenora and companion claims. Had the court found that respondent had agreed, generally, to finance appellant in the operation of any property he might secure, by purchase or lease, and that, in visiting Goodrich gulch respondent was acting by reason of the disclosures made by appellant concerning the Elenora claim, as appellant contends, clearly a fidu — 206 — ciary relation would have resulted. But the evidence tended to show, and the court found, that the visit was not pursuant to any such disclosure; that at the time of the conversation between these two men the Elenora was not discovered, and no vein was disclosed therein.' Taking, then, the theory of the defense, to discover, what right, if any, appellant had thereunder, we find that respondent had promised to lend financial aid to appellant, if necessary, should he find a property on which he could secure a lease; that pursuant to such agreement appellant disclosed to respondent such knowledge as he had concerning the Carolina claim and the Argenta claim in the vicinity of the Anderson property; that these two claims were the subject matter of the visit to Goodrich gulch ■ but on visiting the claims appellant himself found that the Argenta was being operated and consequently could not be leased and was advised by respondent that on the Carolina a man could only make wages by hard work and the project of leasing that claim was abandoned. Having gone as far as appellant desired regarding the only claims suggested by appellant, respondent was released from responsibility, at least until appellant should suggest some other claim. The subject matter of the contract being disposed of, appellant had no right “under the defense.” This also disposes oi the discussion concerning “part performance” under the contract, if any, disclosed in the defense. The judgment of the district court of Madison county is affirmed. Affirmed. Mr. Chief Justice Brantly and Associate Justices Holloway, Hurly and Cooper concur.